Action in time of judicial legal provision

Abstract

The given study is dedicated to the temporal effect of general judicial legal
provisions. Although some amount of research (provided by T. Anakina, Y.
Barabash, B. Malyshev, A. Myroshnychenko, S. Shevchuk, V. Tykhyi, Y. Todyka)
has been devoted to this issue, relatively little attention has been attached to it by the
Ukrainian science.
Thus the major task of this research is to provide the further investigation of
action in time of judicial legal provisions, including the analysis and generalization of
foreign experience in this field.
This paper focuses on legal provisions that are general rules contained in diverse
judicial acts and that are recognized as the law or as the law interpretation and
specification standards (also it focuses on the judicial provisions which invalidate the
legislation rules).
Different views on the nature of judicial legal provisions determine to some
extent the temporal characteristics of their operation. So when legal provisions are
perceived purely as interpretation of law, their temporal scope is often regarded as
being the same as the scope of the relevant rules of law. The approaches may vary in
cases where legal provisions are seen as the result of law detailing and law making.
The author has scrutinized different approaches, existing in various legal
systems. Traditionally, a precedent is considered to have a retroactive effect in
common law countries. However, it is often given a prospective effect. Besides, a
precedent can combine the both effects in a certain way. The author analyzes
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approaches to resolving these issues in the US (where prospectivity is actively used),
the UK (where retroactivity is mainly applicable) and other common law systems. In
civil law systems retroactivity of judgments is often limited.
This paper describes the grounds for these approaches including some principles
of law like legal certainty (and its component - res judicata) and protection of
legitimate expectations. Temporal effect of judicial acts is the result of searching the
fair balance between stability of law and need to adjust it according to the changing
social conditions. Solving of this dilemma often leads to establishing of different
restrictions on retroactive effect of legal provisions. It often takes into account the
interests of the initiators of the trial that led to changes in the case law. Judgment
usually has the retroactive effect on them.
The author draws parallels in the views on operation of legal provisions that
exist in civil and common law systems. Defending a certain direction of their
temporal effect is associated with a corresponding view on their nature. Retroactive
and prospective approaches in common law doctrine are respectively associated with
the declaratory and law-making theories of precedent. The continental doctrine
implies such correlation with the views on legal provisions as the results of the
interpretation which only detects initial meaning of legal rules, or as the result of lawdetailing
or even law-making activity.